Defendant, Peter J. Streuber, was convicted of sodomy and on this appeal he questions the sufficiency of the evidence as well as the fairness of the trial accorded him.

On April 11, 1957, defendant was a member of the crew of the Submarine U.S.S. Sirago which was then in the Philadelphia Navy Yard for repairs. On that date, defendant was on shore leave and in the course of the evening he drank freely, having visited five or six bars, with the result that he would fall asleep every time he sat down. For that reason, about 11:30 p.m., he refused an invitation from two of his shipmates to visit another bar and set out to return to the navy yard. While waiting for a street car, he realized that he was on the wrong street and while going to the right street to catch his street car, he decided to stop for a final nightcap at the Twentieth Century Club.

[ 185 Pa. Super. Page 371]

There he met a Charles Espinet who offered to drive him to the base. Espinet falsely told defendant that he was a civilian employee of the Navy stationed at the navy yard.

En route the defendant fell asleep but was awakened by Espinet who told him that he had to make a comfort stop. Both defendant and Espinet drove to the League Park in Philadelphia, stopped and got out of the car for that purpose. Defendant returned to the car and then fell asleep again. Later he was awakened to find Espinet had opened his trousers, was rubbing his head on his stomach and had his privates in his hand. At or about that time a park guard flashed his light upon them for a period of from five to fifteen seconds and, as a result of what the guard saw, both persons were arrested.

The Commonwealth's case consisted of the testimony of the park guard. He stated that when he flashed his light into the car, he found Charles Espinet in a leaning position down on defendant. When the officer shouted, Espinet raised his head and his mouth was partly open and his lips "were sort of in a wet foaming condition." Defendant's pants were open and his privates out and when the officer shouted, defendant placed his privates back into his trousers. Defendant was questioned by the park guard and this officer stated defendant told him he did not know what was going on; that he was drunk. This mainly was the Commonwealth's case.

Defendant took the stand and testified in his own behalf. He stated he met Espinet at the Twentieth Century Club; that after he finished his drink there Espinet offered to drive him to the base; that he got into Espinet's car and then fell asleep. After the comfort stop, he did not know ...

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